• by Wendy Davis  @wendyndavis, October 24, 2024

Hospitals don't violate a state wiretap law by transmitting data about website visitors' browsing activity to Google and Meta, the highest court in Massachusetts ruled Thursday.

In a 5-1 ruling, the Supreme Judicial Court ruled that the types of transmissions covered by the wiretap law don't include online tracking data.

“Based on our review of the text of the wiretap act and its legislative history, we cannot conclude with any confidence that the legislature intended 'communication' to extend so broadly as to criminalize the interception of web browsing and other such interactions,” Justice Scott Kafker wrote in an opinion joined by Justices Kimberly Budd, Frank Gaziano, Serge George, Jr. and Elizabeth Dewar.

The Massachusetts wiretap law makes it illegal to intercept communications without the consent of all parties.

That law, passed in 1968, was meant to prohibit eavesdropping on “person-to-person conversations or messaging,” Kafker wrote.

“The legislative history is focused on the secret interception of person-to-person conversations and messaging, particularly private ones,” he wrote. “While the legislature plainly intended the wiretap act to prohibit future technological means of such interceptions, it is not at all clear that the legislature intended the statute's prohibition on intercepting 'communications' to include, as supposed 'communications,' the web browsing alleged here.”

The ruling grew out of a lawsuit brought by Kathleen Vita, who alleged that New England Baptist Hospital and Beth Israel Deaconess Medical Center ran afoul of the state wiretap law by configuring their websites to transmit analytics data to Google and Meta, via Google Analytics and the Meta Pixel.

Her complaint included allegations that she used the hospitals' websites to research doctors, seek information about symptoms, conditions and medical procedures for herself and her husband, and access her husband's medical records.

Vita's suit, like other similar lawsuits against medical centers and tech companies, came soon after The Markup reported that 33 of the country's top 100 hospitals have the Meta Pixel on their sites.

Kafker said in the ruling that even though the allegations don't support a state-law wiretapping claim, they raise “serious concerns” and may violate other laws, or warrant lawsuits for the “improper handling of confidential information.”

“We do not in any way minimize the serious threat to privacy presented by the proliferation of third-party tracking of an individual's website browsing activity for advertising purposes,” he wrote. “These concerns, however, should be addressed to the legislature.”

Justice Dalila Argaez Wendlandt dissented, arguing that the state wiretap law covers communication that occurs through online platforms.

“Where a technological advance (like the telephone before it) revolutionizes how we communicate -- by selecting dropdown filters specifying preferences to find and to book an appointment with an available physician on a website, for example, rather than doing the same by dialing a keypad and placing a call to the hospital using a telephone –- the legislature chose to protect these new ways of exchanging information against electronic eavesdroppers,” she wrote.